Open Season for Data Fishing on the Web: The Challenges of the US PRISM Programme for the EU. CEPS Policy Brief No. 293, 18 June 2013

The revelation of the top-secret US intelligence-led PRISM Programme has triggered wide-ranging debates across Europe. Press reports have shed new light on the electronic surveillance ‘fishing expeditions’ of the US National Security Agency and the FBI into the world’s largest electronic communications companies. This Policy Brief by a team of legal specialists and political scientists addresses the main controversies raised by the PRISM affair and the policy challenges that it poses for the EU. Two main arguments are presented: First, the leaks over the PRISM programme have undermined the trust that EU citizens have in their governments and the European institutions to safeguard and protect their privacy; and second, the PRISM affair raises questions regarding the capacity of EU institutions to draw lessons from the past and to protect the data of its citizens and residents in the context of transatlantic relations. The Policy Brief puts forward a set of policy recommendations for the EU to follow and implement a robust data protection strategy in response to the affair.

Mass Surveillance of Personal Data by EU Member States and its Compatibility with EU Law. CEPS Liberty and Security in Europe No. 61, 6 November 2013

In the wake of the disclosures surrounding PRISM and other US surveillance programmes, this paper assesses the large-scale surveillance practices by a selection of EU member states: the UK, Sweden, France, Germany and the Netherlands. Given the large-scale nature of these practices, which represent a reconfiguration of traditional intelligence gathering, the paper contends that an analysis of European surveillance programmes cannot be reduced to a question of the balance between data protection versus national security, but has to be framed in terms of collective freedoms and democracy. It finds that four of the five EU member states selected for in-depth examination are engaging in some form of large-scale interception and surveillance of communication data, and identifies parallels and discrepancies between these programmes and the NSA-run operations. The paper argues that these programmes do not stand outside the realm of EU intervention but can be analysed from an EU law perspective via i) an understanding of national security in a democratic rule of law framework where fundamental human rights and judicial oversight constitute key norms; ii) the risks posed to the internal security of the Union as a whole as well as the privacy of EU citizens as data owners and iii) the potential spillover into the activities and responsibilities of EU agencies. The paper then presents a set of policy recommendations to the European Parliament.

The Political and Judicial Life of Metadata: Digital Rights Ireland and the Trail of the Data Retention Directive. CEPS Paper in Liberty and Security No. 65, May 2014

This paper examines the challenges facing the EU regarding data retention, particularly in the aftermath of the judgment Digital Rights Ireland by the Court of Justice of the European Union (CJEU) of April 2014, which found the Data Retention Directive 2002/58 to be invalid. It first offers a brief historical account of the Data Retention Directive and then moves to a detailed assessment of what the judgment means for determining the lawfulness of data retention from the perspective of the EU Charter of Fundamental Rights: what is wrong with the Data Retention Directive and how would it need to be changed to comply with the right to respect for privacy? The paper also looks at the responses to the judgment from the European institutions and elsewhere, and presents a set of policy suggestions to the European institutions on the way forward. It is argued here that one of the main issues underlying the Digital Rights Ireland judgment has been the role of fundamental rights in the EU legal order, and in particular the extent to which the retention of metadata for law enforcement purposes is consistent with EU citizens’ right to respect for privacy and to data protection. The paper offers three main recommendations to EU policy-makers: first, to give priority to a full and independent evaluation of the value of the data retention directive; second, to assess the judgment’s implications for other large EU information systems and proposals that provide for the mass collection of metadata from innocent persons, in the EU; and third, to adopt without delay the proposal for Directive COM(2012)10 dealing with data protection in the fields of police and judicial cooperation in criminal matters.

Safe Harbour or into the storm? EU-US data transfers after the Schrems judgment. Liberty and security in Europe No. 85/November 2015

In its recent Schrems judgment the Luxembourg Court annulled Commission Decision 2000/520 according to which US data protection rules are sufficient to satisfy EU privacy rules regarding EU-US transfers of personal data, otherwise known as the ‘Safe Harbour’ framework. What does this judgment mean and what are its main implications for EU-US data transfers? In this paper the authors find that this landmark judgment sends a strong message to EU and US policy-makers about the need to ensure clear rules governing data transfers, so that people whose personal data is transferred to third countries have sufficient legal guarantees. Without such rules there is legal uncertainty and mistrust. Any future arrangement for the transatlantic transfer of data will therefore need to be firmly anchored in a framework of protection commensurate to the EU Charter of Fundamental Rights and the EU data protection architecture.